Affinio Native Apps Terms of Service

Version: April 20, 2022

These terms of service (“Terms of Service” or “TOS”) govern your access to and use of the Affinio Applications (defined in Section 12) made available through your Snowflake Instance (defined in Section 12) or otherwise through the Snowflake services. These TOS take effect when you (i) use the Snowflake Marketplace to obtain the Affinio Applications, (ii) you enter into an Order Form (defined in Section 12) for the Affinio Applications, or (iii) you otherwise begin to use the Affinio Applications in your Snowflake Instance (the “Effective Date”).References to “Affinio” means Affinio Holdings Inc.

References to “Client” means you or, if applicable, the entity (legal person) that you represent. Other terms are defined in Section 12 or elsewhere in these TOS.

You represent that you are of the age of majority in your country of residence and are lawfully able to enter into contracts. If you are entering into these TOS on behalf of an entity, such as the company you own or work for, you represent to Affinio that you have the legal authority to bind that entity.

‍A.         General Terms and Conditions‍

‍1    Provision and Use of the Offerings.

‍1.1       Affinio Applications. Subject to Client’s compliance with these TOS, Affinio will make available the Affinio Applications that Client subscribes to through Snowflake Marketplace or an Order Form. The Affinio Applications are provided solely for use by Client in accordance with the terms of these TOS.

1.2       Manner of Provision of the Affinio Applications. After Client subscribes for the Affinio Applications, Affinio will share the Affinio Applications through the Snowflake Marketplace for Client to use in Client’s Snowflake Instance. Client must have an active account in good standing with Snowflake at all times in order to use the Affinio Applications. Client shall comply with all terms and conditions governing Client’s use of Snowflake’s services while using the Affinio Applications.

1.3       Changes to the Affinio Applications. Affinio may change the Affinio Applications at any time. Client agrees to use the latest version of the Affinio Applications.

1.4       Managed Services. If specified in a separate Order Form accepted by Affinio, Affinio may provided Managed Services to Client as an administrator in Client’s Snowflake Instance.

‍2    Payment Terms.

‍2.1       Fees. Client agrees to pay the fees that apply to the subscription for Affinio Applications and, if applicable, Managed Services selected by the Client through the Snowflake Marketplace or in an Order Form. Fees are exclusive of any taxes. Client agrees to pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or similar amounts that are owed under these TOS and which Affinio is permitted to collect from Client under applicable law.

2.2       Payment.Unless otherwise stated at the time of subscription, fees and applicable taxes will be calculated monthly and must be paid by Client within thirty (30) days of the date of an invoice. Client agrees that invoices may be prepared and sent by either Snowflake or Affinio and may be communicated through the Client’s Snowflake Instance or to the email address associated with Client’s Snowflake Instance or that Affinio has on file. All payments will be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or because of any taxes, levies imports, duties, charge, fees and withholdings of any nature.

2.3       Late Payment.If any amounts due to Affinio under these TOS are not received by Affinio by the payment due date, then, at Affinio’s discretion, such amounts may accrue interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until paid. In addition, if payment of an overdue amount is not made within ten (10) days of written notice of late payment, Affinio may suspend the provision of and Client’s and Permitted End User’s use of the Affinio Applications.

‍3    Third Party Services.

3.1       Affinio Applications may now or in the future have features or functionality that allow Client to connect to or ingest data from third party services. Affinio may change or discontinue such features at any time. Affinio is not responsible for any third party services or any third party data. Any such features that are provided now or are provided in the future are for the convenience of Client and are offered without any representations, warranties or support of any kind.

‍4    Representations and Warranties

‍4.1       Mutual Representations and Warranties. Each party represents and warrants that: (a) it has the legal power and authority to enter into these TOS; (b) these TOS are entered into by an agent of such party with all necessary authority to bind it to the terms and conditions of these TOS; (c) each party will comply with Applicable Laws in the performance of its obligations and, in the case of Client, the use of the Affinio Applications; (d) each party will comply with the terms and conditions applicable to the use of the Snowflake Instance that are applicable to that party; (e) neither party is the subject of sanctions under Sanctions Laws; (f) neither party is owned or controlled by any person or entity subject to sanctions under Sanctions Laws; and (g) neither party is located or organized in, or owned or controlled by persons or entities in a jurisdiction subject to sanctions under Sanctions Laws.

4.2       Representations and Warranties of Affinio.

4.2.1  Good Industry Practices. Affinio represents and warrants that it will provide the Affinio Applications and Managed Services in a manner consistent with Good Industry Practices. Client’s sole and exclusive remedy for a breach of this Section will be to terminate these TOS and receive a pro-rata refund of prepaid fees for the balance of the Term.

4.3       Representations and Warranties of Client. Client represents and warrants that all Client Data is at all times compliant with all Applicable Laws and its use in connection with the Affinio Applications does not violate rights of any third party, including any third-party Intellectual Property Rights or rights of privacy and publicity.

4.4       Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, AFFINIO PROVIDES THE AFFINIO APPLICATIONS AND MANAGED SERVICES ON AN “AS-IS” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, AFFINIO DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES OF EVERY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE AFFINIO APPLICATIONS, MANAGED SERVICES, AND ANY THIRD PARTY SERVICES OR DATA ACCESSIBLE THROUGH THE APPLICATIONS, INCLUDING ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES: (A) OF RESULTS, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT; (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (C) THAT THE AFFINIO APPLICATIONS OR ACCESS TO ANY THIRD PARTY SERVICES OR DATA WILL BE UNINTERRUPTED OR ERROR FREE; AND (D) THAT ANY CLIENT DATA WILL BE SECURE OR NOT LOST OR UNALTERED. THE AFFINIO APPLICATIONS MAY BE SUBJECT TO LIMITATIONS, INTERRUPTIONS, DELAYS, CANCELLATIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF SOFTWARE SERVICES, COMMUNICATIONS AND HOSTING FACILITIES. CLIENT ACKNOWLEDGES AND AGREES THAT AFFINIO HAS NO RESPONSIBILITY OR LIABILITY FOR CLIENT DATA.

‍5    Client Responsibilities.

5.1       Permitted End Users. Client is responsible for all Permitted End Users’ use of the Affinio Applications and is responsible for ensuring Permitted End Users comply with all terms of these TOS applicable to their use of the Affinio Applications.

5.2       Acceptable Use. Client shall not, and shall not permit any Permitted End User to, use the Affinio Applications in any manner or for any purpose other than as permitted by these TOS. Neither Client nor any Permitted End User will, or will attempt to: (a) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs and SDKs (except to the extent Applicable Law prohibits this restriction); (b) access or use the Affinio Applications in a way intended to avoid incurring fees; (c) rent, lease or resell the Affinio Applications or allow access to the Affinio Applications by a third party (other than a Permitted End User) except as expressly permitted by these TOS; (d) provide or use the Affinio Applications as a service bureau or shared processing service; (e) interfere with any license key mechanism in the Affinio Applications or otherwise circumvent mechanisms in the Affinio Applications intended to limit their use; or (f) publicly disseminate product documentation or information regarding the performance of the Affinio Applications. The above restrictions are material to these TOS and failure to comply with any of them would constitute sufficient cause for termination.

5.3       Client Data. Client is solely responsible for ensuring that Client Data does not violate the terms of these TOS or any Applicable Laws.

5.4       Security and Backup. As between Affinio and Client, Client is responsible for configuring Client’s hosting environment, including taking all appropriate actions to secure, protect and back up Client Data and other data stored in the Client’s Snowflake Instance.

‍6    Confidentiality.

6.1       Duties. A Receiving Party shall, and shall cause its employees, agents, representatives and contractors, to hold Confidential Information of the Disclosing Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the Disclosing Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in any case with no less than a reasonable degree of care. The Receiving Party agrees not to make use of the Disclosing Party’s Confidential Information other than for the exercise of rights or the performance of obligations under these TOS, and not to release, disclose, communicate it or make it available to any third party other than employees, agents, representatives and contractors of the Receiving Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under these TOS.

6.2       Request for Disclosures. In the event that a Receiving Party receives a request to disclose all or any part of the Disclosing Party’s Confidential Information under the terms of a valid and effective subpoena, warrant or order issued by a court of competent jurisdiction or by a governmental or regulatory body, the Receiving Party agrees (unless prohibited by Applicable Laws or the terms of the subpoena, warrant or order) to promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request. If disclosure of such Confidential Information is required, the Receiving Party will only disclose such Confidential Information that is required by the terms of the subpoena, warrant or order.

6.3       Return or Destruction. Upon termination of these TOS or, if requested by the Disclosing Party in writing, the Receiving Party shall, at its own expense, either promptly return or destroy, at the Disclosing Party’s option, all Confidential Information in its (or any of its employees’, agents’, representatives’ and contractors’) custody, possession or control, and not retain any copies or reproductions or extracts thereof in any form whatsoever. If requested by the Disclosing Party, the Receiving Party will provide a certificate to the Disclosing Party certifying that the terms and conditions of this Section 6.3 have been complied with. Notwithstanding the foregoing, the Receiving Party may retain any Confidential Information that (i) it is required to keep for compliance purposes under a document retention policy or as required by a court or regulatory agency or by applicable law, rules, regulations or professional standards; (ii) consists of analyses, compilations, studies or other documents prepared by the Receiving Party; or (iii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures.

‍7    Intellectual Property.

7.1       Affinio Proprietary Rights. Affinio or its licensors own all right, title, and interest in and to the Affinio Applications, all related technology and Intellectual Property Rights. Subject to the terms of these TOS, Affinio grants Client a limited, royalty-free, revocable, non-exclusive, non-sublicensable, non-transferrable license to copy and use the Affinio Applications in Client’s Snowflake Instance solely in accordance with these TOS during the Term for Client’s internal use only.  Client shall not remove any proprietary notices from the Affinio Applications or any documentation provided with the Affinio Applications. Except as expressly provided in this Section, Client obtains no other rights in or to the Affinio Applications including any Intellectual Property Rights.

7.2       Usage Data. Affinio accesses and uses Usage Data for the purposes of billing and securing the Affinio Applications and measuring and enhancing the functionality and operation of the Affinio Applications. Affinio may also aggregate and anonymize Usage Data such that it is no longer capable of being used to identify Client or any Permitted End User (“Anonymized Data”). As between Client and Affinio, Affinio owns all right, title and interest, including Intellectual Property Rights, in and to the Anonymized Data.

7.3       Suggestions. If Client provides any suggested improvements or enhancements to the Affinio Applications or ideas for new Affinio Applications or services (“Suggestions”), Affinio may use such Suggestions without restriction of any kind. Client hereby irrevocably assigns to Affinio all right, title, and interest in and to the Suggestions (other than Client’s Confidential Information) and agrees to provide Affinio any assistance we require to document, perfect, and maintain Affinio’s rights in the Suggestions.

‍8    Term and Termination.

8.1       Term. The term of these TOS shall commence on the Effective Date and shall remain in effect until terminated in accordance with Section 8.2 (Termination for Convenience) and Section 8.3 (Termination for Cause) (the “Term”).

8.2       Termination. Client may terminate these TOS at any time upon ninety (90) days’ notice. Client will remain responsible for all fees due through to the end of any Minimum Committed Term.

8.3       Termination for Cause. (a) This Agreement may be terminated by a party if the other Party (the “Breaching Party”) has breached any material term of these TOS or an Order Form (if applicable), and the Breaching Party does not cure such breach to the reasonable satisfaction of the other party within thirty (30) days after receiving written notice describing the breach. Any such termination shall be effective at the end of such thirty (30) day cure period. (b) A party may terminate these TOS and all Order Forms (if applicable) immediately upon  written notice if the other party is (i) bankrupt or insolvent, (ii) commences or is the subject of insolvency or bankruptcy laws of any jurisdiction, (iii) admits in writing its inability to pay liabilities or debts as they become due, (iv) winds up its business (voluntarily or otherwise), or (v) becomes, for any reason, incapable of continuing to perform its obligations under these TOS.

8.4       Effect of Expiry / Termination.

8.4.1  Services.Upon termination of these TOS: (i) Affinio may revoke Client’s and Permitted End User’s access to the Affinio Applications;  (ii) Client shall and shall require Permitted End Users to immediately cease using the Affinio Applications; (iii) Client shall immediately uninstall the Affinio Applications; and (iv) any outstanding fees shall become due and payable.

8.4.2  Survival. The following Sections shall survive the expiry or termination of these TOS: Sections 2 (Payment Terms), 4.4 (Disclaimer), 6 (Confidentiality) 7 (Intellectual Property), 8 (Term and Termination), 9 (Limitation of Liability), 10 (Indemnification) and 11 (Miscellaneous) of these TOS.

‍9    Limitation of Liability.

9.1       Exclusions. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUE, LOST PROFITS, DAMAGED DATA, FAILURE TO ACHIEVE COST SAVINGS, LOSS OF USE OF FACILITY OR EQUIPMENT, OR THE FAILURE OR INCREASED EXPENSE OF OPERATIONS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

9.2       Limitation. IN NO EVENT WILL AFFINIO’S LIABILITY, OR ANY LIABILITY OF AN AFFINIO AFFILIATE OR SERVICE PROVIDER, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO AFFINIO FOR THE APPLICABLE AFFINIO APPLICATIONS and MANAGED SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM, IRRESPECTIVE OF THE LEGAL OR EQUITABLE THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.

9.3       Client Data. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AFFINIO HAS NO LIABILITY ARISING OUT OF OR RELATING TO COMPANY DATA OR ITS USE BY PERMITTED END USERS IRRESPECTIVE OF THE LEGAL OR EQUITABLE THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.

‍10 Indemnification.

10.1    Affinio Obligations. Affinio shall defend, indemnify and hold Client Indemnified Parties harmless from and against any and all third party claims, liabilities, demands, causes of action, damages, losses and expenses of any nature or kind whatsoever, including, without limitation, reasonable lawyer’s fees and disbursements (including expert fees) (each a “Claim”) arising from a claim that the Affinio Applications or the Managed Services, or the use of the Affinio Applications or Managed Services infringes any third party’s U.S. or Canadian patent, copyright, trademark or trade secret, except to the extent such alleged infringement arises from the combination of the Affinio Applications or Managed Services or any part thereof or the use of the Affinio Applications or Managed Services or part thereof in combination with a product, service, software, data, content or method not supplied by Affinio.

10.2    Client Obligations. Client shall defend the Affinio Indemnified Parties against any Claims resulting from: (i) a breach of Section 5 (Client Responsibilities); (ii) any dispute between Client and a Permitted End User other than resulting directly from Affinio’s breach of these TOS; or (iii) an allegation that the Client Data infringes any third party’s rights, including any patent, copyright, trademark or trade secret.

10.3    Procedure. A party (the “Indemnitee”) shall provide prompt written notice of any Claim for which it believes the other party (the “Indemnitor”) is required to indemnify pursuant to this Section 10. The Indemnitee for itself and for those for whom the Indemnitor is required to provide indemnification pursuant to this Section 10 (collectively, the “Indemnitees”) shall provide all reasonable information and assistance, at the Indemnitor’s expense, which the Indemnitor may require to defend the Claim. The Indemnitor shall have carriage of the defence of the Claim, and all negotiations for the settlement or compromise thereof, provided that the Indemnitees may have counsel present to represent their interests and that no settlement or compromise of any Claim shall attach any liability to or require payment from the Indemnitees.

10.4    Mitigation. For any claim covered by Section 10.1(b), Affinio will, at its election, either: (i) procure the rights to use the allegedly infringing Application or Managed Service; (ii) replace the alleged infringing Application or Managed Service with a non-infringing alternative; (iii) modify the alleged infringing portion of the Application or Managed Service to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Application or Managed Service and provide Client with a prorate refund of pre-paid unused fees. This Section 10 is Client’s sole remedy for any claim covered by Section 10.1(b) or any other allegation that the Affinio Applications or Managed Services infringes a third-party’s Intellectual Property Rights.

‍11 Miscellaneous.

11.1    Dispute Resolution. If differences of opinion arise out of or in relation to these TOS, executive leaders for each of the parties shall make reasonable efforts for a period of at least sixty (60) days to reach an out-of-court settlement. Each party may only seek recourse to the ordinary courts once efforts to reach a settlement has proven unsuccessful with regard to the dispute in question. The right of the parties to seek injunctive relief from the ordinary courts shall remain unaffected hereby.

11.2    Governing Law; Jurisdiction. This Agreement will be construed and governed by the laws of the Province of Ontario and the laws of Canada applicable therein, and each party further consents to exclusive jurisdiction of the courts located in the Province of Ontario.

11.3    Notices. All notices required by these TOS shall be deemed to have been given and made if  in writing and served by email, by personal delivery or by a national courier service or, in the case of notices to Client, served through the Snowflake services. A notice shall be deemed delivered (i) upon receipt, if delivered personally; (ii) immediately upon sending if given through the Snowflake services or by email; or (iii) when delivered if sent by courier. Notices to Affinio, shall be sent to Affinio Holdings Inc. Attention: Legal Department, PO Box 29099, RPO Halifax Shopping Centre, Halifax, Nova Scotia, Canada B3L 4T8 with a courtesy copy (which shall not constitute service) to legal@affinio.com.

11.4    Suspension. In addition to any other remedy available to Affinio, Affinio may suspend Client or any Permitted End Users’ access or use of any of the Affinio Applications or immediately upon notice if Client or a Permitted End User (i) poses a security risk to the Affinio Applications or any third party, (ii) is in breach of these TOS, or (iii) creates a material risk to Affinio. Client remains responsible for all fees during the period of suspension. Affinio will restore access to and use of the Affinio Applications as soon as feasible after the condition giving rise to the suspension no longer exists.

11.5    Force Majeure. Except for payment obligations, neither party will be liable for any delay or failure to perform any obligation under these TOS where the delay or failure results from (a) acts of war, terrorism, civil riots or rebellions; (b) quarantines, embargoes, border closures and orders restricting internal or cross-border travel, orders preventing access to facilities and other similar unusual governmental action; (c) loss of facilities; (d) governmental travel warnings due to epidemics, security or other reasons, or delays in or inability to obtain travel permits or visas; and (e) extraordinary elements of nature or acts of God (each a “Force Majeure Event”); provided that the party raising the Force Majeure Event to excuse non-performance could not have been prevented by that party’s reasonable precautions or commercially accepted processes.

11.6    Subcontractors. Affinio may use subcontractors and will be responsible for performance of the services by such subcontractors in the same manner and to the same extent as for its own actions under these TOS.

11.7    Trade Compliance. Each party will comply with Anti-Corruption Laws, including all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations.

11.8    Assignment. Neither these TOS nor any of the rights or obligations hereunder may be assigned by Client without the prior written consent of Affinio.

11.9    Relationship. Nothing in these TOS (a) constitutes either party as the agent or legal representative of the other, (b) creates a partnership or joint venture, or (c) creates a co-employer relationship with respect to any of the Managed personnel assigned to provide the Managed Services. Affinio shall perform the Managed Services and make the Affinio Applications available as an independent contractor.

11.10 Changes to the TOS. Affinio may change these TOS at any time by posting a revised version available on the Affinio website www.affinio.comor through the Snowflake Marketplace or by notifying Client through another method that is reasonable to assume will come to Client’s attention, including messages through the Snowflake Marketplace. Client agrees to the revised TOS by continuing to use the Affinio Applications after the revised TOS come into effect. Unless the revised TOS state otherwise, the revised TOS come into effect upon their last update date stated in the revised TOS. No amendment to these TOS shall be effective unless set out in a written instrument, such as an Order Form, that is signed by Affinio and references the particular provisions being amended.

11.11 Waiver. The waiver by either party of a breach or default of any provision of these TOS or any Order Form by the other party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege by such party constitute a waiver.

11.12 Third-Party Beneficiaries. Except as set forth in Section 10 (Indemnification), neither these TOS or any Order Form creates any third-party beneficiary rights in any person or entity that is not a party to these TOS.

11.13 Publicity. Each party authorizes the other party to publicly identify it as having a strategic relationship with the other party and to include the other party’s name, trademarks and logo on its website and other promotional and marketing materials. Each party shall comply with any brand guidelines communicated by the other party to it in writing. Each party may withdraw this authorization at any time. With Client’s written consent (not to be unreasonably withheld), Client will provide reasonable assistance in the preparation of case studies and press releases during the Term; provided that no such case studies or press releases shall disclose any Confidential Information of either party without that party’s express written consent, which may be withheld in that party’s sole discretion.

11.14 Language; Currency. All communications and notices made or given pursuant to these TOS shall be in the English language. All references in these TOS to dollars or to “$” are expressed in the lawful currency of United States, unless otherwise specifically indicated.

11.15 Entire Agreement; Severance. This Agreement together with any applicable Order Forms and Statements of Work constitute the entire agreement and understanding of the parties and supersedes any previous or contemporaneous agreement between the parties whether written or verbal, relating to the subject matter of these TOS and the applicable Order Forms and Statements of Work. If any provision of these TOS or a Order Form shall be found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these TOS or any Order Form which shall remain in full force and effect. Any invalid or unenforceable provision shall be substituted by a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

11.16 U.S. Government Rights. If Client is a U.S. Government entity or using the Affinio Applications on behalf of a U.S. Government entity, the Affinio Applications are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If Client is using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client will immediately discontinue its use of the Affinio Applications. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

‍12 Additional Definitions.

“Affiliate” means, with respect to a party, a legal entity that, directly or indirectly through one or more intermediaries, control, is controlled by, or is under common control with such party. For the purpose of this definition, “control” means, with regard to any entity, the legal or beneficial ownership, directly or indirectly, of more than fifty percent (50%) of the shares (or other ownership interest, if not a corporation) of such entity through voting rights or through the exercise of rights pursuant to agreement, or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity.

“Affinio Applications” means the Affinio software as a service applications that are made available to Client through the Client’s Snowflake Instance.

“Affinio Indemnified Parties” means Affinio, each of Affinio’s Affiliates, and each of their directors, officers, employees, agents, and their successors and assigns.

“Anti-Corruption Laws” means, collectively, all applicable anti-corruption and anti-bribery legislation including, without limitation, the bribery provisions of theCriminal Code (Canada), the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (U.S.), the Bribery Act (U.K.)

“Applicable Laws” means any domestic or foreign law, rule, statute, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice or direction issued by a Governmental Authority, which is published and in force from time to time during the Term and that is applicable (a) with respect to Affinio to the provision of the Affinio Applications or the Managed Services and (b) with respect to Client, to the use of the Affinio Applications and Customer Data; and (c) to each party’s performance of its obligations in these TOS.

“Confidential Information” means: (a) the terms and conditions of these TOS and all Statements of Work and Order Forms; (b) any information that is reduced to writing and is marked as “confidential”, “proprietary”, “internal use” or similar words that one party (the “Disclosing Party”) discloses to or otherwise grants access or makes available to the other party (the “Receiving Party”); (c) trade secrets, business and financial information, customer lists, Personal Data, business studies and analyses, whether written, printed or in digital format, oral, or visual format that the Disclosing Party discloses to or otherwise grants access or makes available to the Receiving Party; and (d) any other information the Disclosing Party discloses to or otherwise grants access or makes available to the Receiving Party that the Receiving Party should reasonably consider to be confidential given the circumstances. “Confidential Information” does not include information which: (i) is or becomes part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and obtained from sources other than the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (iv) is independently developed by the Receiving Party without reference to any of the Disclosing Party’s Confidential Information.

“Client Data” means any text, images, audio, video, or other data that is used by Client in connection with the Affinio Applications.

“Client Indemnified Parties” means Client, each of Client’s Affiliates, and each of their directors, officers, employees, agents, and their successors and assigns.

“Good Industry Practices” means the exercise of that degree of care, skill, diligence, prudence and foresight that would be reasonably and ordinarily be expected from a skilled and experienced provider of services similar to the Affinio Applications or Managed Services (as applicable) seeking to comply with applicable laws, regulations and industry standards.

“Governmental Authority” means any domestic, foreign or supranational government, whether federal, provincial, state, territorial or municipal, and any governmental agency, ministry, department, tribunal, commission, bureau, board or other instrumentality, including international institutions exercising legislative, judicial, regulatory or administrative functions of, or pertaining to, government.

“Including” means including without limitation.

“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its Source Materials), tools, products knowledge, know-how, including without limitation, trade secrets and other materials or things

“Intellectual Property Rights” means (a) any and all proprietary rights anywhere in the world provided under patent law, copyright law, including moral rights, trade-mark law, design patent or industrial design law, semiconductor chip or mask work law, trade secret law or any other Applicable Law which may provide a right in either Intellectual Property or the expression or use of Intellectual Property and (b) any and all Affinio Applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing.

“Managed Services” means services provided by Affinio to Client to manage the Affinio Applications in Client’s Snowflake Instance and/or consult on data analysis as described in an Order Form.

“Minimum Committed Term” means one (1) year unless a different minimum period of time is agreed to by the Client at the time of subscribing for the Affinio Applications through Snowflake or an Order Form.

“Order Form” means an ordering document setting out the Affinio Applications and/or Managed Services ordered by the Client from Affinio.

“Permitted End User” means an employee or contractor of Client or its Affiliates who is authorized by Client to use the Affinio Applications as permitted by these TOS.

“Sanctions Laws” means U.S. Export Administration Regulations, the International Traffic in Arms Regulations, economic sanctions programs implemented by the Office of Foreign Assets Control, the United Nations Act (Canada), the Special Economic Measures Act (Canada) or the Justice for Victims of Corrupt Foreign Officials Act (Canada), or any similar Applicable Laws, each as they may be amended or replaced from time to time.

“Section” means a section of these TOS.

“Snowflake Instance” means the services provided by Snowflake Inc. in a given account through which the Affinio Applications are made available.

“Snowflake Marketplace” means the place and process whereby Snowflake Inc. enables the exchange of Applications between Snowflake Instance environments (whether via a Private or Public listing).

“Source Materials” means, in relation to the Affinio Applications, all materials that would enable a reasonably skilled programmer to compile, debug and make improvements to such software in a commercially reasonable manner, including (a) all source code related, reasonably annotated; (b) all technical and system documentation, including detailed design, functional, operational and technical documentation, flow charts, diagrams, file layouts, report layouts, screen layouts, business rules, data and database models and structures, working papers and any other notes and memoranda in electronic or written format, which were made or obtained in relation to the design and development of such software and compilation instructions related to such software; (c) listings by name, version and developer of all third party compilers, utilities and other software that are necessary to operate the software, including sufficient information to procure a licence from such developers; (d) a listing of all relevant equipment necessary to operate the Affinio Applications; and (e) copies in source code and object code form, of all compilers, utilities and other software, that are proprietary to Affinio or its licensors and which are necessary in relation to the Affinio Applications.

“Usage Data” means data relating to the use of the Affinio Applications by Client.